Excerpt: - - state of assam, air 1961 sc 986. this clear pronouncement of the supreme court leaves no room for any distinction between 'institution of a case' and 'taking cognizance thereof or for the analogy that the institution of a case is like conceiving a child and taking cognizance of the offence is like the delivery of the child......air 1967 all, 468 and observes: 'the magistrate may initiate action either on a complaint or on a police report and the gist of the above decision is that the case is 'conceived' as soon as a complaint is filed or a police report is made and even if cognizance is taken by the magistrate in the strict sense of the term only after the final report of the police, and the case proceeds only from that stage, it does not cease to be a case instituted on complaint. pursuing the analogy further it must be held that until the police report is received the case conceived by the filing of the complaint remains in the womb, and it is brought forth -- either alive or still-born -- after the receipt of the police report. when a complaint is sent by the magistrate to the police it must be presumed.....

Judgment:ORDER

T.C. Raghavan, J.

1. The recent decision in State of Kerala v. Wilfred, 1968 Ker LT 57 by Sadasivan, J., has been responsible for this revision petition.

2. The petitioner filed a complaint before the magistrate; and the magistrate sent the complaint under Section 156(3) of the Code of Criminal Procedure to the police for investigation. After investigation the police laid a charge-sheet; and when the case came up for further trial, objection was taken that in view of the decision mentioned above, the Public Prosecutor should not conduct the prosecution and the petitioner, as complainant, must make his own arrangements for the prosecution of the case. This the magistrate has accepted; and the correctness of this decision is being challenged before me.

'The Magistrate may initiate action either on a complaint or on a police report and the gist of the above decision is that the case is 'conceived' as soon as a complaint is filed or a police report is made and even if cognizance is taken by the Magistrate in the strict sense of the term only after the final report of the Police, and the case proceeds only from that stage, it does not cease to be a case instituted on complaint. Pursuing the analogy further it must be held that until the police report is received the case conceived by the filing of the complaint remains in the womb, and it is brought forth -- either alive or still-born -- after the receipt of the police report. When a complaint is sent by the Magistrate to the Police it must be presumed that such a step was resorted to by the Magistrate for a further assurance aboutthe truth of the complaint. Putting it differently, the Magistrate is not prepared to proceed on the complaint alone; but thinks it necessary that a police report also should be obtained. The action of the Magistrate will not change the character of the complaint. In other words, the complaint originally filed will not on that account, assume a different garb when the police report is received. The proceedings will continue to be proceedings instituted on complaint.'

Sadasivan, J., also refers to the decision of this Court in K. Damodaran V. V. K. Sippi, AIR 1960 Ker 389, wherein Raman Nayar, J. has held, in interpreting Section 417(3), Code of Criminal Procedure, that any case instituted upon complaint means 'any case of which the Court has taken cognizance upon complaint'. Raman Nayar, J., has also held that 'complaint' does not include a police report.

4. In paragraph 22 of their judgment, the Allahabad High Court has expressly disagreed with the view that a case is instituted only when it is taken cognizance of -- the view expressed by Raman Nayar, J., and Sadavisan, J., appears to have followed this ruling of the Allahabad High Court. In view of a decision by a learned Judge of this Court taking one view, one would have normally expected the case to be placed before a larger bench rather than another learned Judge deciding the case in a different way; and judicial decorum and legal propriety have always demanded that, vide Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936; Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83; Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 and Tribhovandas Purshothamdas Thakkar v. Ratilal Motilal Patel, AIR 1968 SC 372.

5. There is yet another decision of our High Court by Madhavan Nair, J., in Cheeran Sankaran v. Narayanan Rajappan, 1966 Ker LT 635 coming to the same conclusion as Raman Nayar, J., following a decision of the Supreme Court. (The decision of Raman Nayar, J., does not appear to have been noted by Madhavan Nair, J.). However, the decision of Madhavan Nair, J., does not appear to have been brought to the notice of Sadasivan J. In these circumstances, I would have referred the case before me to a Division Bench to dissolve the conflict of opinion between Raman Nayar, J., and Madhavan Nair, J., on one side and Sadasivan, J., on the other. But, the passage extracted by Madhavan Nair, J., from the decision of the Supreme Court refers to two earlier decisions of the Supreme Court; and these three Supreme Court decisions appear to put the matterbeyond controversy and obviate the necessity of a reference to a Division Bench. I have only to consider whether the Supreme Court decisions cover the case; and if they cover the case, I need not refer the case to a Division Bench, as I am bound to follow the Supreme Court decisions.

6. The decision of the Supreme Court pointed out by Madhavan Nair, J. and brought to my notice by the petitioner's Counsel is Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541. Paragraph 6 of thejudgment puts beyond any shadow of doubt the law on the question. Paragraph 6 says:

'The Code does not contain any definition of the words 'institution of a case'. It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein'.

The second sentence extracted above is clear and definite that a case instituted means a case taken cognizance of, as pointed out by Raman Nayar, J., in other words, a case is instituted only when the Court takes cognizance of the offence alleged therein. The Supreme Court also refers to two earlier decisions of the same Court; R. p. Chari v. State of U. P. AIR 1951 SC 207 and Gopal Das v. State of Assam, AIR 1961 SC 986. This clear pronouncement of the Supreme Court leaves no room for any distinction between 'institution of a case' and 'taking cognizance thereof or for the analogy that the institution of a case is like conceiving a child and taking cognizance of the offence is like the delivery of the child. The two later decisions of the Supreme Court (of 1961 and 1964) do not appear to have been considered by the Allahabad High Court.

7. In the light of the decisions of the Supreme Court, the ruling of the Allahabad High Court and the decision of Sadasivan, J., following the Allahabad decision do not lay down the law correctly. Consequently, the order of the magistrate is erroneous.

8. The criminal revision petition is allowed; the order of the lower Court is set aside; and the lower Court is directed to proceed with the case as one instituted on a police report.